October 20, 2006
Draconian -- Even By Israeli StandardsLaw
Between the radioactive elucubrations of the Dear Leader, the accumulation of tortured and executed bodies in Iraq, the tawdry revelations of the Foley affair, and the growing murmur of a supposed Democratic sweep in the midterm election (I’ll believe that one when I see it), there has been precious little front-page consideration of the signing, earlier this week, of the Military Commissions Act.
As you may have heard, the act drastically changes the legal landscape for foreigners in the United States, whether here legally or illegally. It allows the government to deny a foreign suspect the right to challenge his or her imprisonment (habeas corpus), to employ evidence obtained by a wide and ambiguous range of coercive methods, and to use classified evidence whilst withholding it from the defense. Small things like that.
I will leave it to the lawyers here to amplify or amend this summary. Perhaps one reason why there hasn’t been much discussion is that the Supreme Court will ultimately determine whether, and in what form, this law stands. It’s quite possible that the Hamdan case, in which desi lawyer Neal Katyal plays a prominent role, will become the test case. At any rate, some in the media are looking ahead to this next phase, and already centering speculation on Justice Anthony Kennedy, the current swing Supreme.
I did, however, come across one very interesting piece of commentary that I wanted to share. In an Op-Ed in the Boston Globe, Harvard Law professor Martha Minow and a former legal adviser to the Israeli military, Gabrielle Blum, compare the new legislation with Israel’s approach to the same problem. They lead with their finding:
BEFORE ENACTING the “Detainee Bill” (otherwise known as the Military Commissions Act) two weeks ago, Congress should have spent more time learning from the Israeli experience. Compared with Israel’s security measures during a long and difficult experience with terrorism, the US Congress has gone too far in its willingness to compromise human rights and civil liberties. Security considerations, as legitimate and forceful as they are, do not justify such excessive measures, as the Israeli practice demonstrates.
Israel’s Unlawful Combatants Act, enacted in 2002, among other things provides for an immediate military hearing of the detainee upon detention, and a judicial hearing within two weeks and again every six months; a range of requirements for detention conditions and privileges; and the detainee’s right to meet with the Red Cross. The current U.S. legislation provides none of these safeguards. In addition, also unlike Israel, the U.S. law grants immunity to U.S. officials from prosecution except in the most extreme cases.
Minow and Blum conclude:
… the US Military Commissions Act sends to other countries facing terrorism the message that effective judicial review is null and void once the security alarm is sounded. It demonstrates a level of panic and irresponsible abandonment of principles that other nations, facing similar dangers, have avoided.
As bad as this may be for America, it is potentially far worse for countries that look to the United States for leadership. Now, the US example will encourage other nations to throw away rights just when they are sorely tested.
siddhartha on October 20, 2006 09:50 AM in Issues, Law, Military, News, Politics · T·r·a·c·k·b·a·c·k address · Direct link · Email post
Bang on! I feel extremely disheartened with all the developments recently. Day after day, I hear how bad this law is and how fundamental it is to freedom. And yet, the administration marches on, stomping on with a lead foot on fairness. One last hope is the supreme court throwing it out. I used to like McCain a little bit before this. But after the show they put up, like they are against it and in the end doing nothing of merit to alter the bill, I see him as another showman intent on grabbing power by any means.
S, thanks for this. You mention Katyal and I'm very glad about his presence in the legal sphere. At the same time, I've been thinking about the recent Red Cross visit, and, very macaca of me, wondering whether desi docs are a part of such teams. Is there a medical counterpart to Katyal?
Martha Minow actually *sounds* like an underdog. And Arlen Specter, when you think about it, is a pretty draconian sounding name.
If I were the head of a movie studio, I'd send this one back for a rewrite. Unless it was presented as a battle of good versus evil, in which case...what?...really?...well, never mind then.
Agreed -- it is truly sad to see these measures being pushed through. My only hope is that whoever wins in 2008, even if it is McCain, scales back the legislation and we can reclaim at least a semblance of the "moral basis of our fight against terrorism," as Colin Powell recently put it.
Shameless on-topic plug -- for those in the DC area, the South Asian Bar Association of Washington, DC has organized a dinner for Thursday, Oct. 28, at which Neal Katyal will discuss this very issue. All are welcome. More information and registration information here.
I just don't see how this will stand in the supreme court. Even if the Supreme Court somehow goes along with this decision, the shift in Congress should help balance out things in the future. The pendulum swings from one end to the other.
Avoiding a 'check and balance' is not acceptable.
Siddartha:Thanks for covering this topic. A good number of my friends,legally here, not citizens..yet, are quite perturbed by this. Few of them are quite active..politically & this act/law does pose quite a risk to their freedom of expression , especially if someone in power doesn't like the views.
Here's the question(for my own clarity):
1.If Supreme Court recognizes the Military Commission Act as unlawful, does it become ineffective?
2.If Supreme Court okays it, but a Democractic Congress(post Nov election) opposes it?...whose view prevails?
3.If both Supreme Court and Congress, kow tow for now....and if the next President elect wants to abolish this act..can he do it?
Though the current status is disheartening,I am trying to find "tiny" possibilities, to keep my hopes alive.
The Supreme Court can declare, in whole or in part, any act of Congress as being unconstitutional. If it is declared unconstitutional, Congress has the option of drafting a new law that conforms to the constitution or simply drop the issue. Until then, the courts act, the law remains in effect. The only real way it would not be effective prior to a court decision is if a plaintiff convinces a district court judge (the lowest federal court) to enjoin enforcement of the law until a decision is rendered.
2.If Supreme Court okays it, but a Democractic Congress(post Nov election) opposes it?...whose view prevails?
If the SC okays it, then Congress can still repeal the law, but that's doubtful.
3.If both Supreme Court and Congress, kow tow for now....and if the next President elect wants to abolish this act..can he do it?
The President cannot abolish the act. Only Congress can repeal it. However, the President is charged with executing and enforcing the laws of the United States. I don't believe he can outright refuse to enforce a law enacted by Congress. In practical terms, he can through a variety of means.
Suraj,
I think a more general answer to your question is that there is still hope. I haven't read the law itself, but I believe on several issues it gives the executive branch the authority to interpret certain laws, especially the Geneva Conventions. Therefore, the next president is well within his/her right to change any interpretation used in this administration. Furthermore, I would not be at all surprised if the SC struck down the law. Justice Kennedy has a healthy respect for international law and I don't think Judge Roberts is nearly as conservative as people think.
A kinder, gentler face than Scalia, but not much less conservative when it counts. You might want to go back and re-read his opinions from last term. And don't forget he signed on to the Hamdan decision in the DC Circuit that was reversed by the Supreme Court.
And the law is awful. It effectively eliminates habeas corpus for anyone the President declares an unlawful enemy combatant -- with no opportunity for any independent check on that. L'etat, c'est W (and Cheney).
"Hamdi v. Rumsfeld" case
the Hamdi case has already been used to disown the republican's crazy terror laws
recently, if you recall the NSA surveillance program was ruled illegal by the Supreme Court - one of the basis that was used was the Hamdi case. Basically, the case deals with a guy who was captured in afghanistan as an enemy comabatant and it revolves around what rights (or the lack of) he had in his trial
i dont know if they can use this case as a reference again to rule against MCA but it is plausible
anyway thats my two cents
have a nice day
Sriram -
Many thanks for breaking it down for the legally challenged here.
"2.If Supreme Court okays it, but a Democractic Congress(post Nov election) opposes it?...whose view prevails?
If the SC okays it, then Congress can still repeal the law, but that's doubtful. "
When you get a chance, do tell, why it is doubtful?
Sriram..Thanks a bunch. It was quite educative and morale boosting as well. Just made my weekend!
Thanks buddy :)
Thought the comment on Israeli standards was a little snarky - the IDF has one of the cleanest records of any military around.
*cough*
*cough*
Damn this throat. Does anyone have some lozenges?
just ruminating....
Why is there more interest in the "Punjabi not Ar...." post (no disrespect, anna), than in the (much more compelling and educational) post above, which, irrespective of our political leanings, should concern us all.
All the more reason to root for a Dem sweep in November.
SWEEP, SWEEP , SWEEP.
get out the vote in every last corner!
Kritic, I'm a ruminant, too, and I couldn't help but notice that there have been several thought provoking posts here this week that haven't, well, provoked much thought.
Siddhartha on the Sri Lankan war? Nada. Vinod on the persecution of a Bangladeshi? Zip. Taz on the plight of desi cab-drivers? Not a peep.
But if you sprinkle in the magic words, "marriage" or "skin color" ka-boom, three hundred comments.
I guess SM is a mixed-use space. And maximum respect to the bloggers for keeping it mixed-up, that's the strength of the site. But it's funny to observe what large numbers of commenters gravitate towards. Funniest is those commenters who write "this post sucks" or "this has nothing to do with desis" (is it just me, or are there more and more of such comments these days?) and then go on to write dozens of times in the comment-thread of that particular post, while staying away from other posts that, presumably, do not suck.
Before go looking for halls, Kobayashi, Hari did say "...of any military around"
Such as - The Russian and the Chinese armies, for one, have killed, are killing more people (Muslims) than the IDF.
Yet nary a peep from the global intelligentia. Not to mention, the Ummah.
I think we should be talking about string theory.
Ah, but while IDF is not the dirtiest military around (that honor, as you suggest, might well go to the Russians), that does not by any means make them one of the cleanest. Who, exactly, is keeping these records you speak of? How often has the IDF made ceasefires by them dependent on a guarantee that there would be no UN investigation afterwards?
The cough medicine I'm looking for is pronounced "Jenin."
you ruminate much better ( # 17), kobayashi
Kritic and Kobayashi,
It's all good. The dogs bark, the caravan passes. Just because posts like this one get fewer comments doesn't imply they're less read. As for what comments do get posted, their quantity and quality, connoisseurs like yourselves will take that for what it is, more datapoints for whatever ill meta-theory of discourse and representation it is that we are all, in our disorganized and half-aware way, developing.
Onwards!
The greater point, atleast what I draw from what Hari said was, that Israel is used as a 'benchmark' in today's popular culture/media as an oppressive government with heavy handed/draconian laws disproportionate to reality (considering the neighborhood it lives in). Comparing law and order between Israel and the United States is comparing apples and oranges.
But the post highlights that even Israel (though the conotation is negative), with the situation it faces, has a periodic review process. I don't think people here have an insidious agenda agains Israel, popular sentiment does seem to run against most of its policies.
The law enacted gives the executive branch wide berth (or a loophole the size of Alaska) in applying its authority. The fact that Congress passed this (where a Democrat could have filibustered) but didn't, means that the Dems are playing election year politics here and not picking a fight they could possibly lose votes on. If this issue was something they felt could have hit a home run with, you'd bet they'd jump all over it.
Which means the Dems must be damn confident that the Supreme Court will rule against the law, making life easier for democrats (or they have differnt plans if they gain majority in both senate and house). My assumptions, I may be wrong, but thats how I read the tea leaves.
I think it does imply that they're less read, Siddhartha. But, there's absolutely no shame in that. As you point out, there is also the question of quality. A single incisive exchange in the comments threads, something that goes beyond the obvious, something far from the jerking knees, can make all the difference in the world. And that's true whether it's a four comment thread or a four-hundred comment one.
Without the "boring" posts, it's safe to say I probably wouldn't be reading this site.
The dogs bark, my brother, and, indeed, the caravan passes.
Kobayashi -
In that case your cough will only get worse. If you recall, Jenin was not the "massacre" the media led us to believe.
The FDA hasn't approved this medicine. The manufacturer presented fabricated clinical data.
I don't think either of us have statistics on what the relationship between the hit count (from unique users) and # of comments is.
Many of those 3-400 comment threads have a small group of commentators making multiple entries (such as myself), too. It can be deceptive. Plus, most of those comments evolve into replies/discussions of what OTHER commentators are saying, not necessarily reading the main article again.
Both fruits, circular in shape, sweet, lend themselves well to juicing, approximately the size of a baseball, contain small pips, and available from Ahmed the grocer across the street from me.
The United States' military should absolutely be compared to Israel's. A great many of their struggles are similar. Why do people act as if comparison infers identity? George Bush can be profitably compared to Osama. Doesn't mean they're the same person. It does mean there are many points on which they match each other.
As it turns out, I also like comparing apples and orangutangs, but that's not quite as, if you'll pardon the pun, fruitful.
Fox, henhouse.
j
I love the posts that generate fewer comments(compared to ones with +200). For one, I can go through all the comments, and most importantly, they are laid out well. No mud slinging, no venom spits! Sometimes, even posts like these turn into battle fields to push ones own point of view and trash everything else. I stay away from those as well....Now don't push too much by saying "Why are we not getting enough responses for posts like this?"...you may well repent it.
The point isn't that Israel is considered "oppressive" or not. If I wanted oppressive, I'd have picked, say, Syria. The point is that among electoral democracies, Israel is generally considered "hard." In the same sense that the Bush administration and national-security hawks argue that the US is insufficiently "hard" -- that we are "soft" on terrorism, or on threats, or on whatever it is.
The article by Minow and Blum points out that however "hard" Israel is, it has managed to be so without sacrificing certain standards and safeguards that the US seems to be throwing out the window. That strikes me as a very useful comment. It certainly got me thinking, which is why I posted on it...
If you look at it historically, Congress rarely repeals laws that it has passed. First, political realities change and Congress, which isn't exactly the most efficient body in the world, does not spend time going back and re-evaluating past laws. If it does, it generally results in amendments and revisions, not outright repeals. Second, bad laws often result in lack of enforcement by the executive or are struck down by the courts, so it's not really necessary for Congress to repeal laws.
Incidentally, for those of you who work from home, CSPAN-2, as we speak, is airing a live panel discussion on this very issue.
Mr K:
It is *easy* to comment if one can relate to the topic of the post. People think it takes time and is tougher to comment intelligently to weighty topics so they comment less. It doesn't mean all the comments on personal posts are intelligent either.
Boy, Wolf
Huh?
I said they were apple and oranges, I didn't infer their 'identity' is the same (nor was that my intention)
Plus, I said 'Law and Order', I wasn't talking about the military itself. The "United States" and "Israel" are in the same/similar boat analogy is used by the Right and Left for various points. At the end of the day, the tactical and strategic realities are not the same on a macroscopic level, nor is the threat level (or type). It may become the same some day, but I'm still waiting on a US-Canadian-Mexican war this century that will result in a Candian-Mexican alliance to regain Amerian Occupied Mexican and Canadian land with an insurgency fighting through the streets of California.
Look, specifically because the comparision between US and Israel is apple and oranges, in terms of what threat level each country faces, is what makes this American law even more ridiculous. Israel's situation is far more tense and convoluted, yet even their law allows for a review process.
I wasn't nitpicking on you specifically. I agree with you:
Time to start kissing up to distant aunties and uncles who live in Canada. If you do that, you can get into Canada easier than American soldiers applying for refugee status, or the future draft dodgers that will have no luck getting in easily like the draft dodgers of 30 years ago. Even the most distant relative of a Canadian citizen can be sponsored to get into Canada. And the wait for citizenship is quite short. If we have useful skills for the workplace, we will easily find a job.
Understood, Gujudude, and I agree with your larger point. The truth is that my knee jerks out of control when I hear that particular metaphor. I much prefer "the boy who cried wolf."
goddammit. i have him cornered, and he finds a way to slip out. slippery character, that mr. k.
Sriram,
Thanks again.
Manju - "The FDA hasn't approved this medicine. The manufacturer presented fabricated clinical data."
Kobayashi - "Fox, henhouse."
Only one word come to mind, ladies/gents - Beautiful.
Mr. Kobayashi
That "lozenge" you were looking for can be found scattered by the thousands in farmland, villages and towns throughout s. lebanon..I believe the generic name is "cluster bomb".
The Sudanese government and its Muslim Janjaweed militias have killed 200,000+ Muslims at last count.
Generic term is unexploded 'bomblet'/submunition. A cluster bomb is a dispensing container housing the bomblets.
More information on cluster bombs.
With that stand-up comedian anything is possible. Anyways I dont know if I misread the article but when reading this it sort of reminded me of the last scene of Yasmin. http://www.imdb.com/title/tt0420333/
English is not my mother tongue so mind me. I cant express myself more profound:
I just dont get it. People died for the rights we have today and its so strange that those rights can be thrown in the dustbin that easily. That aside, we have to life with the consequences and perhaps the thought is paranoid but I guess it would definitely suck if you are in the wrong place at the wrong time with this wrong law.
Also, are you still speaking of a democracy if the law protects the government not the people?
This is what I found most disquieting.
People who may think that the bill was necessary would also agree that it is important and virtually unprecedented and calls for a long and healthy debate. It should have been on the front page for days, and every little clause should have been debated. But there was almost no discussion in the mainstream media, and in no way did it seem to have captured any public interest, forget outrage. In this case it was not that Nero fiddled while Rome burned, but that Rome fiddled while Nero burned the Constitution (/rhetorical flourish).
"2.If Supreme Court okays it, but a Democractic Congress(post Nov election) opposes it?...whose view prevails?
If the SC okays it, then Congress can still repeal the law, but that's doubtful. "
A democratic congress can't repeal a law without the president signing it into law (unless they get a 2/3rd majority which is highly unlikely although extremely desirable). And you can bet that Bush will veto any such repeal.
In the interest of generating more comment traffic to posts like this, and since I expect that it will become relevant for at least some readers: What is the dating scene in Gitmo like?
Since you ask, take a look.
#47 and #48 -- yeah, i'd say the whole S&M thing loses its charm when you're actually being tortured.
Siddhartha,
Thanks for bringing this up. I intervened in the 'dating' post yesterday and wondered why we weren't talking about this instead...to my mind it is a devastating piece of legislation. It permits torture except in cases where 'serious harm' is inflicted, allows a tribunal set up by the President or Secretary of Defense to decide who qualifies as an 'enemy combatant', and eliminates habeas corpus, a cornerstone of common law for hundreds of years, for these enemy combatants. Theoretically, a newspaper editor or a blogger with objectionable views could now be pulled off the street on the order of the President, called an enemy combatant, and subjected to torture. The Geneva Convention has now become 'optional' for the States.
Re: Supreme Court. A commentator I was listening to noted that the Supreme Court judgment would come down to one vote, that of Justice Kennedy, who has said that he would approve such legislation if Bush garnered Congress support for it. Not much of a safeguard if this is true.
Kinda bleak after their access to Taliban Singles Online was blocked.
DTK (#49): The safe word is Mujahideen.
Abhi (#48): Particularly disturbing was this excerpt:
One officer ordered a soldier to buy some perfume at the PX and rub it on the arm of a detainee "to distract" him. The report said that in response, the prisoner tried to bite her, "fell out of his chair and chipped his tooth."
And here I thought the Pentagon was after the tooth, the whole tooth. Maybe THEY CAN'T HANDLE THE TOOTH!!!
Martha Minow actually *sounds* like an underdog. And Arlen Specter, when you think about it, is a pretty draconian sounding name.
Made my day. Thanks Mr.K. Sorry I had nothing of value to add to the discussion, but that was awesome.
Kritic, dude;
Give it a rest. This:
is getting kinda old. Whether or not the facts about Jenin were misreported, you persist in ignoring the T-Rex in the living room; i.e. the IDF, by precisely the standards developed by Western post-war democracies, smells very bad. Furthermore, I think you've deliberately chosen to ignore the very clear import of the locution "even by Israeli standards".
As for:
I feel rather pessimistic that (assuming a Democratic majority happens) the Dems will choose to rock the boat with the '08 elections looming. Foreigners do not vote, and most "law-abiding independents" whom the Dems might hope to sway in '08 may not care for such subtleties as habeas corpus. The Dems have stopped being a party of principles ever since they started second-guessing what plays well in Middle America. Given the success of the GOP's "evil"-foreigner scare tactics in Middle America, I fear that the Mil. Comm. Act will stand... Democratic majority or not. Or do you think this is being too cynical ?
the post war democracies set standards, thru the Geneva conventions (among other treaties), of dealing with prisoners from state run totalitarians like Nazis and communists. But non-state evil-doers present a special challenge that only forward thinking statesmen like g w bush seem to be willing to address.
Personally, i think there should be more checks and balances in the Military Commissions Act but i'm shocked by how nobody on this thread even addresses the special circumstances related to non state actors committing terrorists acts that may one day include biological or nuclear weapons.
until now, only Israel has set policy w/ this possibility hanging over their head, which explains their draconianism. But we are all Jews now, so we better take some lessons from them.
I agree, as do all commenters, that this is a serious issue. However, it is not the most pressing ethical issue facing the US defence system. That is the question of losing our philosophical bearings. I know it sounds a bit airy, but stay with me for a moment here. What, exactly, would be the point of become terrorists in the fight against terrorism? Is tit-for-tat genocide the answer to genocide? Is retaliatory rape the right response to rape? How can assaults on liberty free us from assaults on liberty?
"They say that what you mock
Will surely overtake you
And you become a monster
So the monster will not break you..."
Yes, Osama is a nut, and he and his minions must be dealt with with toughness, but once cruelty and persecution become part of our own make up, as it has of Israel's, at that point, we're just bailing water. That's the problem with these legal machinations. They are leaving a big gap in the defences we as a nation have set up against cruelty and persecution. And the people who will suffer from this will be, if the history of the last five years is anything to go by, people who have little or nothing to do with the purported "war" in progress. People's lives will be destroyed because they happen to have an expired visa or some such.
There's a good reason the word "draconian" has a strong pejorative sense to it. It's because being cruel is not something any person should aspire to or condone. Tough, sometimes. Cruel, never. Are you willing to say, "cruel, never"? If you're not, the monster broke you already, and there's nothing left to fear. There's no sadder example of that than Israel, subject to one of history's worst campaigns of persecution, barely surviving the century, only to draw the world's contempt for repeated crimes against humanity.
Manju:
Methinks you shock too easily. The reason I -- and I'm speaking only for myself here -- do not address the issue of non-state actors committing terrorist acts is that I do not share your geopolitical innocence. There is an outside chance that non-state actors can be defeated through draconian measures on the home front, but this seems rather naive. Your faith that a western democracy will not be swayed by the temptation to wantonly wield a powerful weapon like the Military Commissions Act against foreigners is an optimism that I don't share. Whether in erstwhile Belgian Congo, or throughout the Afghanistan conflict, or in the "cleansing" of the Sabra and Schatila camps: western democracies have utilised non-state purveyors of terror -- whom you fear so much -- to pursue their ends: i) In such a way as to ensure that their human-rights credentials remain unstained; and ii) With a fine disregard for the "collateral damage" that these non-state actors have caused. Given this type of record of quasi-legal action against innocent foreigners, I for one am not at all sanguine that "forward-thinking statesmen" of the aforesaid heritage can be trusted with legally-sanctioned tools of oppression.
Look Manju, at a certain level, I share your sense of violation that 9/11 represents. It may feel like the end of innocence, but I have mixed feelings about such innocence. The innocent, in the sphere of world politics, has been likened to "...a dumb leper who has lost his bell, wandering the world meaning no harm." (Graham Greene) Giving him the Greenian benefit of doubt : "forward thinking statesmen" like GWB might mean no harm. But I am very much going to keep expressing my concerns about the blowback that is inevitable with neocon mean-no-harm initiatives. So... you now know why I do not (to use your words) even addresses... non state actors committing terrorist acts.
Maybe, maybe not. Possibly people (like me) are just quietly lurking while the topic is hammered out between commenters who (hopefully) have a sufficient degree of knowledge in the area to be able to discuss it intelligently. It is quite a "specialised subject", after all, albeit one which has significant ramifications.
Good discussion so far, everyone. Carry on.
(PS: Offtopic -- GujuDude, thanks for the link on the other thread about Robert Greene's blog. I've flicked through his book The 33 Strategies of War -- haven't bought it yet although it's on my shopping list -- but I had no idea he had his own website. Thanks again).
GB,
Please don't tell me that the simple right to appear before a judge to challenge one's detention is a subtlety for most American voters...
Kobayashi-San,
I actually had some similar thoughts about this on another related thread here a few weeks ago and am therefore going to re-post my comments verbatim:
"I guess the people concerned -- ordinary civilians, politicians, military etc -- need to decide whether they hold this principle as so inalienable from an ethical viewpoint that they are prepared to risk injury/death/defeat rather than compromising the principle. Difficult choice: Idealism vs Pragmatism.
Too much idealism : Naivete and self-destructiveness.
Too much pragmatism : Ruthlessness and cynicism."
Okay, really back to quietly lurking now.....
Jai Singh:
"I guess the people concerned -- ordinary civilians, politicians, military etc -- need to decide whether they hold this principle as so inalienable from an ethical viewpoint that they are prepared to risk injury/death/defeat rather than compromising the principle. Difficult choice: Idealism vs Pragmatism.
I think the objective of the post was to answer the very point you make: that there is not an either-or dichotomy between freedom and security, and that Israel, a country that has had it far tougher for decades now, did not need the extreme powers the US has granted itself.
DQ - I don't know if it is a subtlety, but it is definitely not something that significantly informs their thinking. Something as visually striking as the abuse in Abu Ghraib did not have much of an effect on the public, and it was a complete non-issue in the presidential debates in 2004. The issue of rights affecting non-citizens is much more amorphous, and even people without any ax to grind against damn for'ners might not feel strongly enough about it as it does not affect them. Assuming, of course, that the average American even knows the details, which I seriously doubt. Not to mention the gun-toting job-losing wall-building brown haters (yes, I realize that the border control rage is directed against Mexicans, but it does tap into an undertone of racism and xenophobia).
DQ:
Sorry for being cryptic. What I meant to convey is that lots of people are unclear whether habeas corpus extends to non-citizens. Admittedly, when I say "lots", there is an extrapolation involved. I found that many 1st-year, Ph.D.-level U.S. students are confused over civil right versus voting rights. This confusion may well extend to the populace at large. This may be why the issue of how much of a loss it would be to the national ethos to selectively suspend habeas corpus -- especially if said suspension will most likely affect only foreigners -- appears to be a murky area (maybe I shouldn't have said "subtlety") for the uncommitted, generally-politically-disengaged, superficially concerned-about-national-security type of swing voter.
Rahul and GB, thanks for the clarifications.
From the commentary I've read, though, I derived the impression that the suspension of habeas corpus would apply to citizens as well if the President or Sec of Defense decided to name them enemy combatants. Perhaps this is not being made sufficiently clear through the media? One commentator said that it was the first time the American system, "designed to be run by devils", allowed for no checks or balances against a bad president. In 1930s Germany, the granting by Hindenburg of authoritarian powers to Hitler was a shocker for the left - in a country like the States, which embodies the democratic tradition, it seems incredible that people don't understand that the 'bell is tolling' for them...
DQ, I do not think that this is the case, but more legally savvy folks should comment. Habeas corpus is being denied "only" to aliens named as enemy combatants, as I understand it. Not that it excuses things.
Even without this latest excess, however, there have been tons of wake up calls for Americans, but they've all been systematically responded to with gigantic snores. If people haven't been bothered yet by:
* The aggressive use of surveillance records (including access to library records) under the Patriot Act without any effective supervision by Congress,
* The Hooveresque monitoring (yes, that vast sucking sound you hear is from the information vacuum) of peaceful protesters by the FBI,
* The use of warrantless wiretapping,
* The recording of large numbers of calls to infer patterns (which will possibly provide some work for the good hardworking people implementing the first 3 ideas)
why should one more intrusion tip the balance?
And as long as voters keep electing pusillanimous politicos like Arlen Specter, dissembling demagogues like Orrin Hatch, and hypocritical humbugs like John McCain (yes, I am an alliteration aficionado! A veritable verbal vidwan!), I don't see how things can get any better.
The only amendment that matters, after all, is the second. Yeehaw!
"When they came for me,
there was nobody to complain,
because they didn't know why I had disappeared,
or where I was."
Just to add to the last couple comments, the Constitution specifically denies the federal government the power to suspend habeas corpus. The issue is whether the habeas corpus provisions still apply to unlawful enemy combatants. There are arguments on both ways and it's an issue that will likely reach the Supreme Court. As I mentioned in an earlier comment, CSPAN aired an excellent panel discussion on the issue. It was interesting to hear the opinions of military lawyers. It seems as they would much rather have these hearings take place in Article III courts because there is simply no precedent to provide guidance to the officers drafting the rules and procedures for the military commissions.
this is what the democrats (the donkey) will do to the republicans (the fat dude)in the midterm elections
http://video.google.com/videoplay?docid=-3130011932080891613&hl=en
Rahul and Sriram,
I found a video clip of an interview by Ken Olbermann of a law prof at George Washington U. You can view it at: http://www.msnbc.msn.com/id/15318240 (sorry, haven't figured out how to link to videos here). Here's an excerpt:
OLBERMANN: I want to start by asking you about a specific part of this act that lists one of the definitions of an unlawful enemy combatant as, quote, a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a combatant status review tribunal or another competent tribunal established under the authority of the president or the secretary of defense.
Does that not basically mean that if Mr. Bush or Mr. Rumsfeld say so, anybody in this country, citizen or not, innocent or not, can end up being an unlawful enemy combatant?
JONATHAN TURLEY, GEORGE WASHINGTON UNIVERSITY CONSTITUTIONAL LAW PROFESSOR: It certainly does. In fact, later on, it says that if you even give material support to an organization that the president deems connected to one of these groups, you too can be an enemy combatant.
And the fact that he appoints this tribunal is meaningless. You know, standing behind him at the signing ceremony was his attorney general, who signed a memo that said that you could torture people, that you could do harm to them to the point of organ failure or death.
So if he appoints someone like that to be attorney general, you can imagine who hes going be putting on this board.
OLBERMANN: Does this mean that under this law, ultimately the only thing keeping you, I, or the viewer out of Gitmo is the sanity and honesty of the president of the United States?
TURLEY: It does. And its a huge sea change for our democracy. The framers created a system where we did not have to rely on the good graces or good mood of the president. In fact, Madison said that he created a system essentially to be run by devils, where they could not do harm, because we didnt rely on their good motivations.
Great post Siddhartha!
This ridiculous piece of legislation (suspension of habeus corpus for immigrants) will not sustain an almost certain 14th amendment challenge and should result in a swift striking down of the law.
Also the atrocities committed by the IDF are evidenced by independent facts and the reaction/hypocracy of the Ummah on worse atrocities by the Russian army in Chechnya or Janjaweed in Somalia do not negate that independent reality.
Siddhartha --
Inspired by Kobayashi's comment, I suggest you change the headline on this post to "Bush signs law banning arranged-mixed-marriages while in detention at Guantamamo."
DQ, (#68)
That is definitely a valid interpretation of the law and one that the administration will likely push. There are two reasons I will wait before going into a panic. First, we need to wait for the results of legal challenges to the law. There is a strong argument that the law violates the Habeas clause of the constitution. If the courts accept the argument, which is by no means a certainty but likely IMO, then this provision of the law will be deemed unconstitutional. Second, the tribunals are administered by the military. I've seen more than one military lawyer say that military commissions would not part too far from Article III courts simply because the military wants other countries to honor the Geneva Conventions when U.S. soldiers are captured. I also stated earlier that there are other reasons why the military is wary of the law's implementation. So, while there is definitely a reason to be concerned, I still have some modicum of faith that the courts and the military JAG offices are more competent and reasonable than the Justice Department or White House.